December 19, 2012
GEORGE TEREBUSH, PETITIONER-APPELLANT,
CREATIVE SAFETY PRODUCTS, RESPONDENT-RESPONDENT.
On appeal from New Jersey Department of Labor, Division of Workers' Compensation, C.P. No. 2002-40432.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued October 3, 2012
Before Judges Koblitz and Accurso.
Petitioner George Terebush appeals from the January 23, 2012 dismissal of his workers' compensation claim petition, in which the Judge of Compensation found that his automobile accident did not arise out of and in the course of his employment. This appeal involves the interpretation of the "going and coming rule" as set forth in N.J.S.A. 34:15-36. After reviewing the record in light of the contentions advanced on appeal, we affirm.
The underlying facts are not in dispute. At the time of the accident, Terebush, who lived in Avenel, was employed by Creative Safety Products (Creative) as a magician and puppeteer. He conducted school assembly programs where he taught children about safety. Creative's office was in South Hackensack. Terebush went to the office approximately five times a year. He received his work assignments and pay by mail. Terebush was paid a salary. He drove a Plymouth "wagon"*fn1 owned by Creative from his home to the various schools where he was assigned to present programs. He did not use the vehicle for his personal use. He kept track of his mileage on a daily basis and provided that information to Creative. Creative paid for insurance on the vehicle, fuel, tolls and parking. Terebush did not receive any specific payment for mileage or travel time above his annual salary.
On October 2, 2001, Terebush presented programs at three different elementary schools in the Flemington area, which were located approximately forty miles from his home. He was involved in an accident on his way home that day.
In a workers' compensation case, our scope of review is limited to a determination of whether the findings made could reasonably have been reached on sufficient credible evidence present in the record, considering the proofs as a whole, with due regard to the opportunity of the one who heard the witnesses to judge of their credibility and, in the case of agency review, with due regard also to the agency's expertise where such expertise is a pertinent factor.
[Sager v. O.A. Peterson Constr., Co., 182 N.J. 156, 164 (2004) (quoting Close v.
Kordulak Bros., 44 N.J. 589, 599 (1965)).]
Thus, "[d]eference must be accorded the factual findings and legal determinations made by the Judge of Compensation unless they are manifestly unsupported by or inconsistent with competent relevant and reasonably credible evidence as to offend the interests of justice." Lindquist v. City of Jersey City Fire Dept., 175 N.J. 244, 262 (2003) (internal quotation marks and citations omitted). If a Judge of Compensation mistakenly applies the law to the facts, however, we must reverse. Sentinel Ins. Co. v. Earthworks Landscape Constr., L.L.C., 421 N.J. Super. 480, 485-86 (App. Div. 2011) (citations omitted).
To be entitled to compensation under the Workers' Compensation Act, a claimant bears the burden of proving by a preponderance of the evidence, see Akef v. BASF Corp., 305 N.J. Super. 333, 340 (App. Div. 1997), that his or her injuries, "ar[ose] out of and in the course of employment [and were] due in a material degree to causes and conditions which are or were characteristic of or peculiar to a particular trade, occupation, process or place of employment." N.J.S.A. 34:15-31(a).
Under N.J.S.A. 34:15-36,
Employment [is] deemed to commence when an employee arrives at the employer's place of employment to report for work and shall terminate when the employee leaves the employer's place of employment, excluding areas not under the control of the employer; provided, however, when the employee is required by the employer to be away from the employer's place of employment, the employee shall be deemed to be in the course of employment when the employee is engaged in the direct performance of duties assigned or directed by the employer; but the employment of employee paid travel time by an employer for time spent traveling to and from a job site or of any employee who utilizes an employer authorized vehicle shall commence and terminate with the time spent traveling to and from a job site or the authorized operation of a vehicle on business authorized by the employer.
The Supreme Court has interpreted that language as generally "not allowing compensation for accidents occurring in areas outside of the employer's control, as when the employee is going to and coming from work." Zelasko v. Refrigerated Food Express, 128 N.J. 329, 336 (1992). Relying on numerous appellate decisions, the Court interpreted the statute as encompassing a "travel-time" exception that: allows portal-to-portal coverage for employees
1. paid for travel time to and from a distant job site, or
2. using an employer-authorized vehicle for travel time to and from a distant job site. [Ibid.]
The Judge of Workers Compensation found that Terebush's place of employment was at the schools where he performed on a particular day. Following Zelasko, supra, he also determined that the Flemington area schools, forty miles from Terebush's home, did not constitute a distant job site.
On appeal, Terebush relies on Brown v. American Red Cross, 272 N.J. Super. 173 (App. Div. 1994). In Brown, we held that a phlebotomist who traveled in her own car to and from the homes of donors was covered for injuries sustained during one of these trips. Id. at 181. However, unlike here, in Brown the petitioner was specifically compensated for travel time. Id. at 175-76.
The Judge of Compensation had sufficient credible evidence to determine that a job site forty miles away was not "distant" within the meaning of the statute.